GEORGIA EXPO PIPE AND DRAPE REGISTRATION
The Federal Circuit focused its analysis on the interplay and distinction between “use in commerce” in Section 1127 – drafted to define the types of “use” needed to qualify a mark for federal registration – and the broader “uses” of a mark that trigger infringement liability in the Trademark Statute. On appeal, the Federal Circuit reversed, finding that the undisputed facts established a trademark violation. Summary judgment was granted in favor of Georgia Expo.
Because “neither Georgia Expo’s brochure nor its October 2015 tradeshow activities meet the requirements for the applicable definition of ‘use in commerce’ under the Lanham Act,” the district court held that the statutory provision concerning likelihood of confusion was not applicable and there was no trademark violation. and the goods are sold or transported in commerce.” While it was undisputed that Georgia Expo’s brochures included pictures and references to VersaTop’s product and trademarks, the district court held that Georgia Expo did not infringe VersaTop’s trademarks because it had not affixed the VersaTop trademarks to goods “sold or transported in commerce.” Georgia Expo had merely used the trademarks in marketing materials. In pertinent part, Section 1127 states that a mark is deemed “used in commerce” when “it is placed. In the district court, the question of Georgia Expo’s liability hinged on whether or not “use in commerce” as defined in Section 1127, was required for trademark infringement liability. VersaTop asserted claims for patent, copyright, and trademark violations. Since 2011, VersaTop has sold its system with the federally registered trademarks PIPE & DRAPE 2.0™ and 2.0™.Īccording to the complaint filed in the United States District Court for the District of Oregon, Georgia Expo used and distributed advertising and brochures at the tradeshow that contained images of VersaTop’s coupler and trademarks, including PIPE & DRAPE 2.0™ as depicted below:
VersaTop’s system uses patented ball and crown couplers that can be inserted into the ends of poles, with the ball coupler constructed to be inserted into one of several sockets formed in a crown coupler. The competing parties – Georgia Expo and Versa Top – both produce and sell modular rod and pole systems, typically assembled to form sectional drape-separated spaces. In VersaTop, the issue of whether an alleged infringer can escape trademark liability by asserting that it does not use an infringing mark “in commerce” came to a head at an October 2015 tradeshow for the drape and rod industry.
19, 2019), the Federal Circuit turned its eye to the Trademark Statute and reaffirmed that the cornerstone of an infringement action under the Lanham Act – with or without “use in commerce” as that term is defined in Section 1127 (Section 45 of the Lanham Act) – is the likelihood of confusion. By Marisol Mork on Posted in IP Litigation, Trademarks, US
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